Tuesday, January 17, 2017

The Bombay High Court, in a recent order, not only quashed the criminal prosecution of two Pune doctors, who had been booked under the Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act, but also pulled up authorities for misusing their powers.

“A casual and mechanical exercise of powers by Appropriate Authorities can defeat the object of the Act, which looks at the problem of pre-natal examination leading to female foeticide,” warned Bombay High Court Justice Anuja Prabhudesai in the order dated December 21, 2016. The order, made available on January 12, also de-sealed a sonography machine in a hospital owned by one of the doctors.

The case dates back to June 21, 2012, when Dr L P Gophane, an official from the Pimpri Chinchwad Municipal Corporation, had inspected the Stree Hospital at Kalewadi, Pimpri, owned by gynaecologist Dr Rajender Sujanyal.

Gophane had seized 15 sonography reports which, according to him, did not bear signatures of Dr Shripad Inamdar, the visiting sonologist, but were signed by Sujanyal as head of the hospital. However, Gophane later prepared an inspection report saying all records were maintained up to date.

Despite the report, Dr Anand Jagdaley, medical superintendent of Y C M Hospital, who had been entrusted by an order of the Pimpri Chinchwad Municipal Corporation’s commissioner with additional charge of the post of Medical Officer of Health, and Gophane visited the hospital again on July 17, 2012 and sealed the sonography machine.

A complaint was filed against the doctors under sections 23 (1) , 25 and 29 of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, and rules 6 (6) and (7) .

However, according to Advocate Dr A K Barthakur, counsel for Dr Sujanyal and Dr Inamdar, complaints were filed against the doctors even though Jagdaley had not been appointed an Appropriate Authority by the state government.

Jagdaley had claimed that he had been appointed as the Appropriate Authority in accordance with the provisions of Section 17 of the Act. However, he had not placed on record any notification issued by the government under Section 17 (2) of the Act, appointing the medical officer of Pimpri Chinchwad Municipal Corporation as the Appropriate Authority.

The High Court observed that Jagdale, as well as Gophane, had not disclosed the facts and circumstances which led them to believe that an offence under the Act was committed and necessitated search of the clinic.

“The evidence of these witnesses also did not indicate that they had reason to believe that the sonography machine, which was sealed, would provide evidence of any commission of offence punishable under the Act,” said the judge. Justice Prabhudesai ruled that from the records, it was evident that they had taken drastic measures of sealing the sonography machine in a “most casual manner”, without discharging the obligations under Section 30 of the Act.

The court said, “Inspection report records did not indicate that there was any discrepancy in filling the form ‘F’ or signing the same as prescribed under the Act. Failure to sign computer generated reports by the sonologist does not constitute an offence under the Act and Jagdaley, who had claimed to be the Appropriate Authority, discarded any explanation given by the doctors .

“Hence, sealing of the sonography machine and subjecting the doctors to unnecessary criminal prosecution was an abuse of the process of law,” stated the judge.

The PC-PNDT Act gives the Appropriate Authority the power to ensure that diagnostic techniques are not misused for sex selection. This can be achieved when powers under the Act are exercised judiciously, Justice Prabhudesai said, and referred to a decision made in Dr Sai Shiradkar vs State of Maharashtra in Criminal Writ Petition No 1381 of 2015.

In that case, the division bench of the court (Aurangabad bench) had observed that “mistakes committed without any criminal intent and merely in the nature of procedural lapses need to be properly understood before taking drastic action of initiating criminal prosecution against a person in the field of medical profession.’’